As noted in this week's cover story, "Pot of Gold
," while Colorado's Amendment 20, which legalized marijuana in 2000, does not cover the subject of marijuana dispensaries, a flood of such operations are opening statewide under the auspices of a complicated legal framework that's evolved within the vague constraints of the amendment. While dispensary owners and their legal representation argue their ventures are protected by these legal structures, so far state officials have been wary to weigh in on the politically sensitive issue.
That means the validity of the dispensary model may have to be settled in court -- and one case that may have an impact on it is People v. Clendenin, scheduled to be heard by the Colorado Court of Appeals this month on September 22.
The case arises out of a 2006 police raid of a Longmont home occupied by Stacy Clendenin. The cops found 44 marijuana plants inside, which Clendenin explained she was cultivating for several medical marijuana patients. In a pre-trial order, however, a Boulder County District Court judge found that since she hadn't met several of these patients herself, they couldn't testify in court that she was their caregiver. The jury in the case subsequently found her guilty of marijuana cultivation and distribution.
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Among the arguments Clendenin's lawyer, Robert Corry, is using to appeal the case is that all the patients should have been allowed to testify, even if they hadn't met Clendenin. Corry, one of three lawyers credited with helping to mold the state's marijuana industry, notes the constitutional amendment does not require a caregiver to have personal contact with patients. "Nobody would seriously argue that the patient must have personal contact with every employee at the drug company who manufactured the pills that the patient picks up at the pharmacy," notes Corry in his opening legal brief. "There are numerous people in the manufacturing chain of prescription medications, just as there are numerous people in the medical marijuana production chain."
A boon to Clendenin's case may be the fact that, at a July 20 Colorado State Board of Health hearing that voted down a controversial proposed rule to limit caregivers to five patients each, board members also changed the definition of a caregiver to anyone who's involved in "assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana." That means that, according to state health officials, all a person has to do to be considered an official caregiver is to provide someone pot.
If the Court of Appeals disagrees, however, and finds that the lower court was right to disregard marijuana patients with whom Clendenin didn't have personal contact, the state's booming medical marijuana industry could be in for a rude awakening. Marijuana grow facilities are popping up to provide for dozens and dozens of dispensaries servicing thousands of patients. Just like any other production chain, it's impossible for everyone to meet everybody else -- and a legal requirement that they do so could be a serious downer for the sky's-the-limit business.
Then again, don't expect ganjapreneurs to take such a ruling sitting down. They've already set down deep roots, and they aren't going to give up their green without a fight.